US v. Cortes-Medina

Filing

OPINION issued by Sandra L. Lynch, Appellate Judge; Bruce M. Selya, Appellate Judge and Kermit V. Lipez, Appellate Judge. Published. Authoring Judge: Bruce M. Selya. Dissenting Judge: Kermit V. Lipez. [14-1101]

Case: 14-1101

Document: 00116998805

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Date Filed: 05/12/2016

Entry ID: 5999295

United States Court of Appeals
For the First Circuit
No. 14-1101
UNITED STATES OF AMERICA,
Appellee,
v.
HÉCTOR CORTÉS-MEDINA,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]

Before
Lynch, Selya and Lipez,
Circuit Judges.

Heather Clark, with whom Law Office of Heather Clark was on
brief, for appellant.
Francisco A. Besosa-Martínez, Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney,
Chief, Appellate Division, were on brief, for appellee.

May 12, 2016

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SELYA,

Circuit

Page: 2

Judge.

Date Filed: 05/12/2016

In

this

Entry ID: 5999295

sentencing

appeal,

defendant-appellant Héctor Cortés-Medina insists that his 168month

sentence

unreasonable.

is

both

After

procedurally
careful

flawed

and

consideration,

substantively

we

affirm

the

sentence.1
This appeal has its roots in an indictment returned by
a federal grand jury sitting in the District of Puerto Rico.

The

indictment alleged that the defendant served as an "enforcer" for
a drug-trafficking ring and charged him as a participant in a
conspiracy

to

possess

with

intent

to

distribute

controlled

substances within 1,000 feet of a protected location.

See 21

U.S.C. §§ 841(a)(1), 846, 860.
In due course, the defendant entered into a non-binding
plea agreement (the Agreement) with the government.

The Agreement

provided that, in exchange for his guilty plea to the conspiracy
charge and to a related forfeiture allegation, the government would
recommend a 121-month prison term; provided, however, that the
defendant's criminal history category (CHC) was IV or lower.

The

district court accepted the plea, and the probation office prepared
a presentence investigation report (PSI Report).

Neither side

objected to anything contained in the PSI Report, which (among

1

The panel issued an opinion in this case on January 6, 2016,
but that opinion was subsequently withdrawn.
This opinion
replaces the withdrawn opinion.
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other

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things)

recommended

Page: 3

a

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series

of

guideline

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calculations

culminating in a total offense level of 30, a CHC of IV, and a
guideline sentencing range (GSR) of 135 to 168 months.
At the disposition hearing, the government recommended
the agreed 121-month sentence, even though that sentence was below
the nadir of the GSR.
defense

counsel

and

The district court heard statements from
the

defendant

himself,

and

the

acknowledged the parties' joint sentencing recommendation.

court
The

court then engaged in a dissection of the defendant's criminal
history.
To begin, the court examined the four convictions on
which the defendant's CHC was premised.

It then catalogued

several arrests that had terminated either in acquittals or in
dismissals.

These included two charges for first-degree murder,

two charges relating to destruction of evidence, and an assortment
of charges for drug and firearm violations.2

Noting that none of

these charges had resulted in any punishment, the district court
expressed frustration.

The court said: "This is what I just don't

understand, how these things are happening."

It then added,

cryptically, that "lightning doesn't strike twice in the same
place."

2

The record reflects that the probation office had sought
further information about each of these charges, but none was
forthcoming.
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The district court proceeded, without objection, to
ratify and adopt the guideline calculations limned in the PSI
Report.

It stressed that the defendant was an enforcer in the

drug-trafficking organization, adding "[w]e know what that means."
In the end, the court sentenced the defendant to a term of
immurement at the apex of, but within, the GSR: 168 months.
This

timely

appeal

ensued.

Although

the

Agreement

contains a waiver-of-appeal provision, that provision, by its
terms, is operative only if the court sentences the defendant in
accordance

with

recommendations."

the

Agreement's

"terms,

conditions

and

Because the sentence imposed by the district

court exceeded the sentence recommended in the Agreement, the
waiver-of-appeal provision is a dead letter.

See, e.g., United

States v. Fernández-Cabrera, 625 F.3d 48, 51 (1st Cir. 2010).
Overall,
sentences

is

"[a]ppellate

characterized

by

review
a

frank

of

federal

recognition

substantial discretion vested in a sentencing court."

criminal
of

the

United

States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).

The

"process is bifurcated: we first determine whether the sentence
imposed is procedurally reasonable and then determine whether it
is substantively reasonable."
588, 590 (1st Cir. 2011).

United States v. Clogston, 662 F.3d

Generally, both aspects of this review

are for abuse of discretion.

See Gall v. United States, 552 U.S.

38, 46 (2007); United States v. Martin, 520 F.3d 87, 92 (1st Cir.
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2008).

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When

assessing

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the

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procedural

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reasonableness

of

a

sentence, however, appellate review is more nuanced: we afford de
novo consideration to the sentencing court's interpretation and
application of the sentencing guidelines and assay the court's
factfinding for clear error.

See Flores-Machicote, 706 F.3d at

20.
These standards of review are altered when an objection
is not preserved in the court below.
plain error.
Cir. 2001).

In that event, review is for

See United States v. Duarte, 246 F.3d 56, 60 (1st
Plain error review is not appellant-friendly.

It

"entails four showings: (1) that an error occurred (2) which was
clear or obvious and which not only (3) affected the defendant's
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings."

Id.

Against this backdrop, we turn to the defendant's claims
of error: three procedural objections and a plaint of substantive
unreasonableness.

We address these matters sequentially.

The defendant first argues that the district court erred
by taking into account several dismissed or acquitted charges
because the facts underlying those charges were not proven by a
preponderance of the evidence.

He says that he preserved this

argument by means of a statement contained in the "Background of
the Defendant" section of his sentencing memorandum:
As evidence showed in the court files, that
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were examined, many of the indictments got
dismissed because of lack of proof related to
the supposed direct participation of the
defendant and in others there was no proof at
all.
During the investigations as is shown as well
in the Pre-Sentence Report the defendant has
been accused of many different illegal acts
as, for which many of these accusation [sic]
were
dismissed
because
of
insufficient
evidence.
However, no mention of the dismissed or acquitted charges was made
in

the

"Application

of

Law

and

Arguments"

section

of

the

defendant's sentencing memorandum.
At the outset of the disposition hearing, the district
court confirmed with defense counsel that the defendant had no
objections to the PSI Report.

During that hearing, defense

counsel did not mention the dismissed or acquitted charges at all.
Generally, a party has 14 days after receipt of a
presentence report within which to object in writing to, inter
alia, "material information" contained in that report.
Crim. P. 32(f)(1).

Fed. R.

A failure to object constitutes a waiver of

any objection to such information.

See United States v. Serrano-

Mercado, 784 F.3d 838, 846, 847 (1st Cir. 2015); United States v.
Turbides-Leonardo, 468 F.3d 34, 37 (1st Cir. 2006).

Such a waiver

occurred here.
Nor did the passing reference to the charges in the
background

section

of

the

sentencing
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memorandum

cure

this

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omission.
some

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That reference, particularly when not followed up by

corresponding

reference

in

the

argument

section

of

the

memorandum, did nothing to call to the sentencing court's attention
that the defendant objected to any consideration of those parts of
his arrest record that had not ripened into convictions.

We

conclude, therefore, that the defendant's argument is unpreserved
and engenders plain error review.3
We turn to that review.

The defendant bases his claim

of error on the Supreme Court's opinion in United States v. Watts,
519 U.S. 148, 157 (1997) (per curiam).

In that case, the Court

concluded that, when imposing an offense-level enhancement, a
sentencing court may consider acquitted conduct only if that
conduct is proven by a preponderance of the evidence.4

See id. at

153, 157.
Here,
dismissed

or

enhancement.

however,

acquitted

the

conduct

sentencing
to

court

construct

an

did

not

use

offense-level

Instead, the court referred to the defendant's

3

While our dissenting brother cavalierly proclaims that the
argument made on appeal was "implicit in [the defendant's]
contentions" at sentencing, post at 19, a finding to that effect
would render normal principles of waiver meaningless.
4

The two Seventh Circuit cases relied on by the defendant —
United States v. Short, 4 F.3d 475 (7th Cir. 1993) and United
States v. Ruffin, 997 F.2d 343 (7th Cir. 1993) — add nothing to
the defendant's argument. Though predating Watts, these cases are
in the same general posture and adumbrate the holding in Watts.
See Short, 4 F.3d at 479; Ruffin, 997 F.2d at 345.
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prolific arrest record, which was laid out in the PSI Report and
not

contested

by

the

defendant,

solely

for

the

purpose

of

determining at what point within the GSR the defendant's sentence
should be set.
Admittedly, it is not unreasonable to read Watts as an
indication that the Supreme Court might well hold that a sentencing
court may not accord any significance to a record of multiple
arrests and charges without convictions unless there is adequate
proof of the conduct upon which the arrests or charges were
predicated.

Nevertheless,

our

own

precedent

contains

dicta,

repeated several times, positing that a series of arrests "might
legitimately suggest a pattern of unlawful behavior even in the
absence of any convictions."

United States v. Lozada-Aponte, 689

F.3d 791, 792 (1st Cir. 2012) (quoting United States v. ZapeteGarcia, 447 F.3d 57, 61 (1st Cir. 2006) (internal quotation marks
omitted)); accord United States v. Ocasio-Cancel, 727 F.3d 85, 9192 (1st Cir. 2013).

Today, we caution district courts against

placing weight on such speculation.

But in the absence of such a

prior warning, we cannot see how the sentencing court in this case
plainly erred.
The defendant's next claim of error insists that the
district court abused its discretion by not adequately considering
the factors set forth in 18 U.S.C. § 3553(a).

Our review of this

claim is for abuse of discretion. See Gall, 552 U.S. at 51.
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The defendant's claim centers on his assertion that the
district court failed to consider not only that he had already
served time for a matter incident to the offense of conviction but
also that he had been rehabilitated.

But these potentially

mitigating factors were before the district court at sentencing;
indeed, they were vigorously pressed by defense counsel.

There

is not the slightest reason to think that the district court
overlooked them.5
No more is needed to defeat this claim of error.

Even

though a sentencing court is charged with a duty to "consider all
relevant section 3553(a) factors, it need not do so mechanically."
Clogston, 662 F.3d at 592 (internal quotation marks omitted).
While the court below did not squarely address the two factors
cited by the defendant, we have warned against "read[ing] too much
into a district court's failure to respond explicitly to particular
sentencing

arguments."

Id.

This

court

has

not

required

sentencing courts to walk, line by line, through the section
3553(a) factors.

See United States v. Dixon, 449 F.3d 194, 205

(1st Cir. 2006) (explaining that a sentencing court need not

5

This is especially so because the sentence imposed was
within the GSR. As the Supreme Court has explained, the guideline
range itself bears a direct relation to the compendium of
considerations listed in section 3553(a) and, thus, a within-therange sentence "likely reflects the section 3553(a) factors."
Rita v. United States, 551 U.S. 338, 355 (2007).
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"address [the section 3553(a)] factors, one by one, in some sort
of rote incantation when explicating its sentencing decision").
We have no occasion to impose such a requirement today.

Thus, we

discern no abuse of discretion in the sentencing court's failure
to acknowledge explicitly that it had mulled the defendant's
arguments.
The defendant's last procedural claim implicates 18
U.S.C. § 3553(c).

This statute provides in pertinent part that

the court "at the time of sentencing, shall state in open court
the reasons for its imposition of the particular sentence" and, if
the GSR spans more than 24 months, shall also state "the reason
for imposing a sentence at a particular point within the range."
18 U.S.C. § 3553(c).

The defendant says that the sentencing court

did

comply

not

adequately

with

these

strictures

and

that,

therefore, his sentence must be vacated.
The defendant's premise is sound: the sentencing court's
explanation of its reason for choosing a top-of-the-range sentence
of 168 months is recondite at best.

But the conclusion that the

defendant seeks to draw from this premise is unfounded.

The

defendant did not raise this objection below, and we have held
that a district court's failure to provide an adequate explanation
of a sentence, without more, is not sufficient to constitute plain
error.

See United States v. Medina-Villegas, 700 F.3d 580, 583

(1st Cir. 2012).
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Here, there is no "more": the district court's rationale
is readily apparent from the sentencing transcript.

The court

made no bones about its belief that the defendant's criminal
history score underrepresented his culpability because of his
pattern of arrests and the persistent lack of follow-up with
respect to the charges that were initially preferred against him.
It could well have believed that such items, even absent facts
about the underlying conduct, spoke directly to the character of
the individual, the risk of recidivism, and the need to protect
the public from future crimes.

See United States v. Rivera

Calderón, 578 F.3d 78, 104-05 (1st Cir. 2009).
Transparency at sentencing is important, and we do not
readily condone a district court's failure to comply with the
obligations imposed by section 3553(c).

But neither do we condone

a defendant's failure to object in a seasonable manner and call
such an oversight to the sentencing court's attention in time to
correct it at the disposition hearing.

The failure to voice a

contemporaneous objection constrains our review to plain error,
and we find no plain error here.

There is simply no reason to

believe that if the district court had effected a more literal
compliance with section 3553(c), it would have handed down a milder
sentence.

See Medina-Villegas, 700 F.3d at 584; United States v.

Mangual-Garcia, 505 F.3d 1, 16 (1st Cir. 2007); see also TurbidesLeonardo, 468 F.3d at 39 (explaining that an appellant hoping to
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prevail on plain error review must show "a reasonable probability
that, but for the error claimed, the result of the proceeding would
have been different" (internal quotation marks and alterations
omitted)).
The

defendant's

final

claim

of

error

embodies

a

challenge, raised for the first time on appeal, to the substantive
reasonableness of his sentence.
in

such

circumstances,

review is uncertain.

the

We recently have explained that,

appropriate

standard

of

appellate

See United States v. Vargas-García, 794 F.3d

162, 167 (1st Cir. 2015); United States v. Ruiz-Huertas, 792 F.3d
223, 228 (1st Cir.), cert. denied, 136 S. Ct. 258 (2015).

We need

not resolve that uncertainty today: even assuming, favorably to
the defendant, that his claim of substantive unreasonableness is
reviewable for abuse of discretion, it nonetheless fails.
We start with first principles.
substantive

reasonableness

of

a

sentence

When evaluating the
under

the

abuse

of

discretion rubric, an inquiring court must take into account the
totality of the circumstances.

See Martin, 520 F.3d at 92.

A

principal goal of sentencing is to fashion a sentence that is
"sufficient, but not greater than necessary."

United States v.

Carrasco-de-Jesús, 589 F.3d 22, 29 (1st Cir. 2009) (quoting 18
U.S.C. § 3553(a)).

In determining whether a sentencing court has

achieved this goal, we assess the plausibility of the sentencing
court's rationale and the appropriateness of the sentence itself.
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See id. at 30.
Challenging a sentence as substantively unreasonable is
a heavy lift.

That lift grows even heavier where, as here, the

sentence falls within a properly calculated GSR.

See Clogston,

662 F.3d at 592-93; see also United States v. Jiménez-Beltre, 440
F.3d 514, 518 (1st Cir. 2006) (en banc) (explaining importance of
advisory

guidelines

in

the

sentencing

calculus).

Indeed,

a

reviewing court may apply "a presumption of reasonableness" to a
within-the-range sentence.
347, 351 (2007).
fairly

powerful

Rita v. United States, 551 U.S. 338,

At a bare minimum, a defendant "must adduce
mitigating

reasons

and

persuade

us

that

the

district court was unreasonable in balancing pros and cons."
Clogston, 662 F.3d at 593 (internal quotation mark omitted).
In the case at hand, the defendant asseverates that his
sentence is substantively unreasonable on two fronts.

He first

submits that he deserves a more lenient sentence because of his
rehabilitation.6

Second, he complains that he already has served

a sentence in a Puerto Rico prison for a 2004 drug crime — a crime
that he says is incident to the charged conspiracy.
The charge of substantive unreasonableness is futile.

6

In support, he notes that he has finished his high-school
degree, completed various workshops, maintained a record of steady
employment, and secured a promise of re-employment upon release
from incarceration.
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The offense of conviction is serious: the defendant served as an
enforcer for a thriving conspiracy that sold drugs in a protected
area.

The defendant's criminal history is bleak.

And though his

efforts at rehabilitation are laudable, the district court is in
the

best

position

to

weigh

the

credibility

of

a

claim

of

rehabilitation and to balance the sentencing scales in light of
such a claim.

See Gall, 552 U.S. at 51-52.

So, too, the defendant's suggestion that the sentence
imposed punishes him twice for the same criminal conduct is
unavailing.

In support, the defendant relies on a guideline

provision, USSG §5K2.23.

That provision, however, states that a

downward departure may be warranted if the defendant has completed
a term of imprisonment for a crime incident to the offense of
conviction and that crime "was the basis for an increase in the
offense

level

for

the

instant

offense."

United

States

v.

Kornegay, 410 F.3d 89, 99 (1st Cir. 2005) (emphasis omitted).
Here,

however,

the

Puerto

Rico

drug-trafficking

conviction

identified by the defendant was not assigned any criminal history
points in the calculation of his CHC.

Thus, that conviction did

not serve to increase his offense level, and section 5K2.23 does
not apply.
To say more would be to paint the lily.

Here, the

sentencing court offered a plausible rationale for the sentence
imposed,

and

that

within-the-range
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sentence

represents

a

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defensible

outcome.

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Having

in

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mind

the

totality

Entry ID: 5999295

of

the

circumstances, we conclude that the district court did not abuse
its considerable discretion in sentencing the defendant at the top
of — but within — the GSR.

In other words, the sentence was

sufficient but not greater than necessary to achieve the legitimate
goals of sentencing.
The fact that the parties jointly agreed to recommend a
lower

(downwardly

conclusion.

variant)

sentence

does

not

alter

this

In the absence of exceptional circumstances (such as

the applicability of a statutory mandatory minimum sentence), the
starting point for a court's sentencing determination is the
guideline range, not the parties' recommendations.

Thus, we have

consistently refused to accord any decretory significance to such
non-binding recommendations — or even to require a sentencing court
to explain why it decided to eschew those recommendations.

See

Vargas-García, 794 F.3d at 167; United States v. Vega-Salgado, 769
F.3d 100, 104 (1st Cir. 2014); see also Carrasco-de-Jesús, 589
F.3d at 29.
We need go no further.7

7

For the reasons elucidated

Much of what our dissenting brother has written, including
his attempt to find solace in the Supreme Court's recent decision
in Molina-Martinez v. United States, No. 14-8913, slip op. (U.S.
Apr. 20, 2016), has no bearing on the issues that are fairly
presented by this appeal. For prudential reasons, we elect not
to respond to these extraneous comments.
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above, the sentence is
Affirmed.

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— Dissenting Opinion Follows —

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LIPEZ, Circuit Judge, dissenting.

Entry ID: 5999295

My colleagues all but

acknowledge that the district court erred by relying on appellant
Héctor Cortés-Medina's bare record of dismissed and acquitted
charges to support a sentence nearly four years longer than the
government recommended.

Despite their indirect language, the

message of the majority opinion is unmistakable: district courts
may not factor unproven charges into their sentencing decisions
without finding, by a preponderance of the evidence, that the
conduct underlying those charges took place.
The

majority

nonetheless

refuses

to

vacate

Cortés-

Medina's sentence, relying on the plain error doctrine.
reasoning

is

flawed.

Not

only

is

the

plain

error

Their

standard

inapplicable on the facts of this case, but my colleagues also
fail to acknowledge that precedent from both the Supreme Court and
our own court long ago established that mere allegations of
criminal behavior may not be used in sentencing.
district court's error here was plain.

Hence, the

Moreover, the majority's

decision to leave Cortés-Medina's sentence intact is at odds with
the spirit and message of the Supreme Court's recent decision on
plain error in sentencing.

See Molina-Martinez v. United States,

No. 14-8913, slip op. at 11-12 (U.S. Apr. 20, 2016).

Briefly

stated, both the law and fairness entitle Cortés-Medina to a
resentencing in which the unsubstantiated charges play no role.

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I. Standard of Review
My colleagues apply the plain error standard of review
because

Cortés-Medina

did

not

object

to

the

portion

of

his

presentence investigation report ("PSR") listing charges against
him that either were dismissed or resulted in acquittal. 8

I

disagree that Cortés-Medina's challenge to the court's use of these
unsubstantiated

charges

was

unpreserved.

Certainly,

Cortés-

Medina was not required to object to the inclusion of these charges
in his PSR, as he has not argued that the arrests and subsequent
proceedings did not occur.
sentencing
charges.9

memorandum

the

He did, however, point out in his
flimsy

foundation

for

many

of

the

Referring to his multiple indictments in state court,

he noted that "many of the indictments got dismissed because of
lack of proof related to the supposed direct participation of the
defendant and in others there [was] no proof at all."

He further

stated that "many of these accusation[s] were dismissed because of
insufficient evidence."

Although Cortés-Medina did not repeat his

objection in the argument section of his memorandum, or explicitly
assert that the court should not take his dismissed and acquitted

8

The reference here to "dismissed" charges also encompasses
references by the district court and the majority to arrests that
may not have led to formal charges.
9

In addition to four prior convictions, Cortés-Medina's PSR
lists one acquittal and multiple arrests for charges that were
subsequently dismissed.
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charges into account, that objection and assertion are implicit in
his contentions that the charges lack support.10
Moreover, even if plain error review applies, CortésMedina would satisfy its requirements.

The four elements of the

10

Cortés-Medina did not object to use of his unsubstantiated
criminal history after sentence was imposed, but the obligation to
reiterate an argument at that point is uncertain.
See United
States v. Gallant, 306 F.3d 1181, 1189 (1st Cir. 2002)("[T]here is
no Federal Rule of Criminal Procedure giving advance notice to
counsel of a requirement to make post-sentence objections.").
Indeed, we have recognized the risk that a defendant might irritate
the district court by resuming argument after the sentence is
imposed. Id. at 1188-89 (observing that "few trial judges would
warm to a rule which requires continued argument after the court
gives its sentence").
To eliminate that risk -- and thereby diminish uncertainty on
appeal concerning the appropriate standard of review -- I urge our
court to follow the lead of other circuits and adopt a prophylactic
rule requiring sentencing judges to expressly ask the parties for
objections after the sentence is announced.
The Sixth Circuit, for example, has adopted such a rule
pursuant to its supervisory power over district courts within its
jurisdiction. The rule directs sentencing judges,
after pronouncing the defendant's sentence but
before adjourning the sentencing hearing, to
ask the parties whether they have any
objections to the sentence just pronounced
that have not previously been raised. If the
district court fails to provide the parties
with this opportunity, they will not have
forfeited their objections and thus will not
be required to demonstrate plain error on
appeal. . . . Providing a final opportunity
for objections after the pronouncement of
sentence, "will serve the dual purpose[s] of
permitting the district court to correct on
the spot any error it may have made and of
guiding appellate review."
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plain error test are: (1) an error that was (2) clear or obvious,
which both (3) affected the defendant's substantial rights and (4)
"seriously impaired the fairness, integrity, or public reputation
of judicial proceedings."

United States v. Ramos-González, 775

F.3d 483, 499 (1st Cir. 2015) (quoting United States v. RamosMejía, 721 F.3d 12, 14 (1st Cir. 2013)).

As I elaborate below,

the prohibition against relying on unsubstantiated allegations of
culpable conduct to justify a longer sentence has long roots in
precedent.

Hence, absent evidence sufficient to meet the modest

United States v. Bostic, 371 F.3d 865, 872 (6th Cir. 2004)
(footnote omitted) (quoting United States v. Jones, 899 F.2d 1097,
1102 (11th Cir. 1990), overruled on other grounds by United States
v. Morrill, 984 F.2d 1136 (1993)). The Sixth Circuit's rule is
itself derived from a similar requirement in the Eleventh Circuit.
See Jones, 899 F.2d at 1102 (instructing district courts "to elicit
fully articulated objections, following imposition of sentence, to
the court's ultimate findings of fact and conclusions of law");
id. at 1102-03 (stating that "[c]lear articulation" from defense
counsel will "tell the appellate court precisely which objections
have been preserved and which have been waived, and enable the
appellate court to apply the proper standard of review to those
preserved").
The value of such a rule is illustrated by this case, where
the requirement would have avoided, or at least minimized, the
confusing jumble of standards deemed applicable by the majority:
(1) plain error for the claim that the district court improperly
considered acquitted and dismissed charges; (2) abuse of
discretion for the claim that the court failed to adequately
consider the factors set forth in 18 U.S.C. § 3553(a); (3) plain
error for the claim that the court failed to provide an adequate
explanation of the chosen term of imprisonment; and (4) an
uncertain standard of review for the defendant's challenge to the
substantive reasonableness of his sentence (leading the majority
to apply abuse of discretion).
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preponderance-of-the-evidence standard, a court's use of unproven
charges in sentencing is error that must be characterized as "clear
or obvious."

Moreover, the district court invoked such charges

when selecting the high end of the applicable Guidelines range,
despite the Probation Office's inability to explain the underlying
conduct or give reasons for the dismissals.
manifestly prejudicial.

The error was thus

As for the miscarriage-of-justice prong,

we previously have recognized that "the difference in potential
jail time would be a concern in any balance."

United States v.

Ramos-González, 775 F.3d 483, 507 (1st Cir. 2015) (quoting United
States v. Torres-Rosario, 658 F.3d 110, 117 (1st Cir. 2011)).
The Supreme Court's recent decision in Molina-Martinez
further supports the conclusion that this error would satisfy what
the majority describes as "not [an] appellant-friendly" standard.
In Molina-Martinez, the Court rejected the Fifth Circuit's "rigid"
rule that made it harder for a defendant who belatedly identifies
a Guidelines error, and whose sentence is nonetheless within the
correct Guidelines range, to show prejudice under the plain error
standard.

Molina-Martinez, No. 14-8913, slip op. at 2.

While

Molina-Martinez involved an incorrect Guidelines range, and the
focus here is on the district court's selection of an appropriate
sentence

within

an

undisputed

range,

the

Court's

realistic

assessment of the burdens of the plain error standard is equally
applicable.

It is not as if a more "appellant-friendly" approach
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to plain error in sentencing would impose undue costs on the
courts.

As the Court in Molina-Martinez observed, "even when a

Court of Appeals does decide that resentencing is appropriate, 'a
remand for resentencing while not costless, does not invoke the
same difficulties as a remand for retrial does,'" id. at 15
(quoting United States v. Wernick, 691 F.3d 108, 117-118 (2d Cir.
2012), and United States v. Sabillon-Umana, 772 F.3d 1328, 1334
(10th

Cir.

2014)

(stating

that

the

"cost

of

correction

is

. . . small" because "[a] remand for sentencing . . . doesn't
require that a defendant be released or retried").
Molina-Martinez

thus

rejects

the

misguided,

court-

centric obsession with the finality of sentences in favor of a
practical view of the balance of interests when a court confronts
the belated claim of a criminal defendant whose sentence was
flawed.

Given the modest impact of a resentencing on the judicial

system, we should not lightly deny that remedy to a defendant whose
term of incarceration appears to have been erroneously lengthened.
Yet, the majority gives only glancing attention to the obvious
error, and the resulting unfairness, in the sentence imposed on
Cortés-Medina.11

11

On the record before us, even under the plain

Moreover, despite cautioning district courts against
placing weight on a series of unproven charges, the majority
elsewhere in its opinion suggests that the court's reliance on
such charges in this case was acceptable.
In rejecting
appellant's separate argument that the court did not provide an
adequate explanation for imposing a top-of-the-range sentence, my
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error standard, Cortés-Medina should prevail on his claim of
procedural error.
II. The Plainness of the Preponderance Standard
My colleagues write that the Supreme Court "might well
hold that a sentencing court may not accord any significance to a
record of multiple arrests and charges without convictions unless
there is adequate proof of the conduct upon which the arrests or
charges were predicated."

Even as qualified, this observation --

anchored in the Supreme Court's nearly two-decades-old decision in
United States v. Watts, 519 U.S. 148 (1997) (per curiam) -effectively recognizes the long heritage of the principle that
criminal charges may not play a role in sentencing without proof
that the underlying conduct, in fact, occurred.

Nonetheless, the

majority depicts the district court's error as not "plain" in light
of dicta in our court's caselaw.
The majority is wrong in suggesting that the governing
law was equivocal at the time of Cortés-Medina's sentencing.

As

described below, both Watts and our own precedent make clear that
the focus must be on the defendant's actual conduct, not on mere

colleagues note that the court "could well have believed, even
absent facts about the underlying conduct," that Cortés-Medina's
"pattern of arrests and the persistent lack of follow-up" "spoke
directly to the character of the individual, the risk of
recidivism, and the need to protect the public from future crimes."
This implicit endorsement of the district court's now-discredited
reasoning further reflects the majority's inattention to fairness
in this case.
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allegations

of

criminal

Page: 25

activity

Indeed, this is commonsense.

Date Filed: 05/12/2016

unsupported

by

Entry ID: 5999295

any

facts.

Even a series of arrests does not

prove culpability if none of the charges bore fruit and the court
has no information about what triggered the arrests.

Sometimes,

systemic flaws lead to arrests without justification.

See United

States v. Zapete-Garcia, 447 F.3d 57, 61 (1st Cir. 2006) (noting
that "arrest 'happens to the innocent as well as the guilty'"
(quoting Michelson v. United States, 335 U.S. 469, 482 (1948));
see also, e.g., United States v. Gallardo-Ortiz, 666 F.3d 808, 815
(1st Cir. 2012) ("We have cautioned against district courts relying
on mere arrests as indicative of a defendant's character . . .
since a criminal charge alone does not equate with criminal guilt
of the charged conduct.").

Hence, a court imposing incarceration

for a later crime cannot simply presume that past charges resolved
without

conviction,

even

if

there

were

many

of

them,

are

attributable to flawed or lax prosecutorial or judicial systems
rather than the defendant's innocence.
Nor was there any doubt at the time of Cortés-Medina's
sentencing in December 2013 as to the standard of reliability
applicable

to

the

consideration

acquitted criminal activity.

of

uncharged,

dismissed

or

The need for proof by at least a

preponderance of the evidence had been plainly articulated in both
Supreme Court and First Circuit caselaw well before that date.

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A. The Teaching of Watts
In Watts, the Supreme Court rejected an argument that
principles of due process foreclose reliance on acquitted conduct
to calculate the Guidelines range, stating that "a jury's verdict
of acquittal does not prevent the sentencing court from considering
conduct underlying the acquitted charge, so long as that conduct
has been proved by a preponderance of the evidence." 519 U.S. at
157 (emphasis added).

In so stating, the Court reaffirmed its

prior holding that "application of the preponderance standard at
sentencing generally satisfies due process."

Id. at 156 (citing

McMillan v. Pennsylvania, 477 U.S. 79, 91-92 (1986)).
Although the focus in Watts was on the use of acquitted
conduct to set the Guidelines range, the Court did not suggest
that a standard less demanding than preponderance-of-the-evidence
applies to the use of acquitted conduct -- or any other unproven
criminal activity -- in choosing a sentence within the range.12
To the contrary, multiple statements in the Watts opinions reflect
an assumption that any facts used in sentencing -- pertaining to

12

Notably, the issue debated by the majority and dissent in
Watts was not whether a lesser standard should apply, but whether
acquitted conduct should be a factor at all in calculating the
Guidelines range. In his dissent, Justice Stevens conceded that
the Guidelines permit the use of acquitted conduct in selecting
the particular sentence within a range, but argued that acquitted
conduct should be entirely excluded from consideration in setting
the range. See 519 U.S. at 162, 166 (Stevens, J., dissenting).
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allegations of past criminal conduct, or otherwise -- must be
proven by a preponderance of the evidence or an even higher
standard of reliability.

First, the Court quotes commentary from

Guidelines § 6A1.3 stating that "it is 'appropriate' that facts
relevant

to

sentencing

be

proved

by

a

preponderance

of

the

evidence," 519 U.S. at 156, and the majority goes on to make the
observation quoted above linking the preponderance standard with
the requirements of due process.

Id.13

In addition, as quoted

above, the Court framed its holding in Watts broadly, without any
suggestion that the preponderance standard applies only for the
purpose of selecting the Guidelines range: a sentencing court is
permitted,

in

general,

to

consider

"conduct

underlying

the

acquitted charge, so long as that conduct has been proved by a
preponderance of the evidence."

13

Id. at 157.

Section 6A1.3(a) of the Guidelines states, in part:
In resolving any dispute concerning a factor
important to the sentencing determination, the
court may consider relevant information
without regard to its admissibility under the
rules of evidence applicable at trial,
provided that the information has sufficient
indicia of reliability to support its probable
accuracy.

The commentary invoked by the Court states: "The Commission
believes that use of a preponderance of the evidence standard is
appropriate to meet due process requirements and policy concerns
in resolving disputes regarding application of the guidelines to
the facts of a case." See 519 U.S. at 156 (citing § 6A1.3 cmt.).
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Second, Justice Scalia points out that the preponderance
of the evidence standard -- the measure of reliability the Court
has endorsed for other sentencing facts -- is also consistent with
due process for conduct underlying an acquittal.

He asserts that

neither the Sentencing Commission nor the courts may entirely
exclude from the sentencing calculus "information which would
otherwise justify enhancement of sentence or upward departure," or
impose

"some

higher

standard

of

probative

worth

than

the

Constitution and laws require," simply because that information
"pertains to acquitted conduct."

See id. at 158 (Scalia, J.,

concurring).14
Third, and consistently, the Watts Court acknowledged
the possibility that, in some circumstances, the more demanding
clear-and-convincing evidence standard might be appropriate.
at 156-57.

Id.

In a lengthy footnote citing cases reflecting "a

divergence of opinion among the Circuits," id. at 156, the Court
quotes an Eighth Circuit case characterizing the Supreme Court's
McMillan decision as approving the preponderance standard only
"'for garden variety sentencing determinations,'" id. at 156 n.2
(quoting United States v. Townley, 929 F.2d 365, 369 (8th Cir.
1991)).

14

In

other

words,

the

Court

in

Watts

considered

the

Although Justice Scalia does not refer expressly to the
preponderance standard, he implicitly accepts the lead opinion's
affirmation of McMillan and the Court's long-held view that
preponderance of the evidence is the constitutional baseline.
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possibility that, at times, an assessment more reliable than the
preponderance standard might be applicable to sentencing facts.
Neither the Court nor the circuits it quoted in Watts contemplated
the possibility of proof less reliable than preponderance of the
evidence.

This view that Watts reaffirms preponderance of the

evidence as the minimum standard of reliability is also reflected
in academic literature.

See, e.g., Claire McKusker Murray, Hard

Cases Make Good Law: The Intellectual History of Prior Acquittal
Sentencing, 84 St. John's L. Rev. 1415, 1468 (2010) ("Under Watts,
prior acquittal sentencing is permitted but not mandated, and a
hard floor of reliability is established in the form of the
requirement

that

prior

acquitted

conduct

be

proved

to

a

preponderance of the evidence.").
Watts was thus not merely a harbinger of a reliability
requirement for considering, in the majority's words, "a record of
multiple arrests and charges without convictions."

Maj. Op.

Rather, Watts applied a well-established minimum standard in a
context -- a jury verdict of acquittal -- where the competing
argument was that such charges should not be considered at all.
B. First Circuit Law
The

preponderance-of-the-evidence

baseline

for

considering sentencing facts has also long been established in our
circuit.

Indeed, two decades ago, we applied the standard in this

very context, i.e., to the choice of sentence within the Guidelines
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range where the court sought to rely on unproven criminal conduct.
See United States v. Lombard, 102 F.3d 1, 4 (1st Cir. 1996) ("[T]he
district court may . . . choose to give weight to the uncharged
offenses in fixing the sentence within the statutory range if it
finds by a preponderance of evidence that they occurred . . . .");
see also United States v. Munyenyezi, 781 F.3d 532, 544 (1st Cir.
2015) ("[A] judge can find facts for sentencing purposes by a
preponderance of the evidence, so long as those facts do not affect
either the statutory minimum or the statutory maximum . . . ."
(citations omitted)); United States v. Fermin, 771 F.3d 71, 82
(1st Cir. 2014) ("While the jury must, of course, find facts beyond
a

reasonable

doubt,

a

preponderance-of-the-evidence

standard

applies to the sentencing court's factual findings."); United
States v. Gobbi, 471 F.3d 302, 314 (1st Cir. 2006) (stating that
"acquitted conduct, if proved by a preponderance of the evidence,
still may form the basis for a sentencing enhancement").
I recognize that, despite this well-established standard
of reliability, we have not always used the words "preponderance
of the evidence" when considering a district court's reliance on
charges that did not lead to conviction.

See, e.g., United States

v. Flores-Machicote, 706 F.3d 16, 21 (1st Cir. 2013); United States
v. Lozada-Aponte, 689 F.3d 791, 792 (1st Cir. 2012); Zapete-Garcia,
447 F.3d at 61.

Nonetheless, we have applied that standard even

when we have not referred to it by "name," routinely scrutinizing
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the facts underlying the unproven criminal charges to ensure the
necessary degree of reliability.

See, e.g., United States v.

Hinkley, 803 F.3d 85, 93 (1st Cir. 2015) (upholding court's
reliance on reports of inappropriate sexual contact with minors
where district court "found that it was reasonable to rely on the
experience of the detective who prepared the police reports" and
where "certain details reported by [a victim] made the reports
'almost self-authenticating'"); United States v. Díaz-Arroyo, 797
F.3d 125, 127, 130 n.3 (1st Cir. 2015) (noting prosecutor's
explanation that charges for murder and attempted murder were
dropped "only after the sole surviving witness to the incident (a
minor who was able positively to identify the defendant as the
shooter) was threatened and fled the jurisdiction," and that
defense

counsel

"did

not

directly

challenge

the

prosecutor's

account of the circumstances surrounding the dismissal of the
charges"); Flores-Machicote, 706 F.3d at 21 (noting that the
district court "went to considerable lengths to walk through the
defendant's prior interactions with the law . . . [and] explained,
in some detail, why [it] believed the outcome of these interactions
underrepresented the seriousness of the defendant's past criminal
conduct"); Gallardo-Ortiz, 666 F.3d at 814-15 (noting that the
district court took into account, inter alia, that numerous charges
were dismissed on speedy trial grounds (i.e., not the merits), and
rejecting defendant's contention that the court relied on "the
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dismissed charges when concluding that he displayed a violent
character"); United States v. Tabares, 951 F.2d 405, 411 (1st Cir.
1991) (noting that some charges were dismissed "not because of any
finding on the merits of the case," but because the defendant was
deported, and that defendant did not "deny the facts, as set forth
in the presentence report, upon which these charges rested").
C. Applying the Standard
Given the precedent described above, this should be an
easy case for concluding that a remand is necessary because, as
the majority concedes, the Probation Office was unable to obtain
any information about the conduct underlying the unproven or
acquitted charges reported in Cortés-Medina's PSR.

The district

court thus had no evidence that those charges in fact reflected
criminal behavior.

At the sentencing hearing, after listing the

charges and noting the absence of explanation for the dismissals,
the court merely voiced its "firm belie[f] that lightning doesn't
strike twice in the same place."

Presumably, the court meant to

offer a different metaphor -- "where there's smoke, there's fire"
-- to say that the unproven charges had substance because CortésMedina had other, similar criminal convictions and also admitted
participating in the drug conspiracy charged in this case.
The majority concludes that this handling of CortésMedina's criminal history is not plain error because of what they
admit is dicta in our precedent "positing that a series of arrests"
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-- as distinguished from a single arrest -- "'might legitimately
suggest a pattern of unlawful behavior even in the absence of any
convictions.'"

See supra (citing Lozada-Aponte, 689 F.3d at 792

(quoting Zapete-Garcia, 447 F.3d at 61)).

However, as the label

"dicta"

do

reflects,

the

cases

they

cite

not

support

the

proposition that a court may rely on multiple unproven charges in
circumstances where, as here, there is no proof of the defendant's
underlying conduct.

In the cited cases, the courts considered

evidence of the conduct.

See United States v. Ocasio-Cancel, 727

F.3d 85, 91-92 (1st Cir. 2013) (indicating that the defendant's
PSR contained detail on the events giving rise to the dismissed
charges and noting that the defendant did not object to "any
aspect"

of

the

discussion);

Lozada-Aponte,

689

F.3d

at

792

(referring to "Lozada's frequent run-ins with law enforcement in
Florida, Illinois, and Puerto Rico, some of which apparently
involved

firearms"). 15

Moreover,

we

cannot

allow

incorrect,

speculative dicta to override standards that are otherwise clearly
articulated by the Supreme Court and our own precedent.
Cortés-Medina's PSR contains an unelaborated list of his
dismissed

and

acquitted

charges,

with

notations

stating

"Court documents were requested but have not been received."

15

that
The

In the third case, Zapete-Garcia, the panel rejected
reliance on a single arrest that occurred more than a decade
earlier, speculating that it might view "a series of past arrests"
differently. 447 F.3d at 60-61.
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PSR states that some of the charges were dismissed for lack of
probable cause, while others are simply described as "dismissed."
The court thus had no basis -- let alone a preponderance of the
evidence -- to find that the "smoke" represented by the unproven
charges signified "fire."

When additional years of incarceration

are in the balance, due process requires more than metaphors.

The

district court thus erred -- plainly -- by relying on those charges
to sentence Cortés-Medina to a longer term of imprisonment than it
otherwise would have imposed.
III. Conclusion
It has been established for decades that a district court
may not rely on allegations of a defendant's past criminal activity
to increase his sentence for a later crime.

Instead, if the court

wishes to consider that alleged conduct at sentencing, it must
determine, by a preponderance of the evidence, that the prior
criminal conduct occurred.

This requirement applies equally to a

single instance of prior criminal activity and to a series of
alleged crimes.
need

to

examine

Invocation of a pattern does not eliminate the
each

unproven

criminal

charge

under

the

preponderance of the evidence standard.
In this case, the majority concedes that no factual
support was offered to substantiate the charges on which the
district court relied.

The Probation Office has also acknowledged

that it tried, but failed, to obtain the supporting information.
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Hence, on this record, defendant Cortés-Medina is entitled to
resentencing
charges.

without

reliance

on

the

dismissed

and

acquitted

As the Supreme Court has now highlighted in rejecting a

"rigid" approach to plain error in sentencing, "the cost of
correction is . . . small,"

Molina-Martinez, slip op. at 15

(internal quotation marks omitted), and any concern about the
burden

of

additional

respectfully

dissent

proceedings
from

my

is

therefore

colleagues'

contrary.

- 35 -

unfounded.

conclusion

to

I
the